Citation Nr: 0331709
Decision Date: 11/14/03 Archive Date: 11/25/03
DOCKET NO. 01-08 412 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. What evaluation is warranted for fibromyalgia from
October 21, 1999?
2. Entitlement to service connection for a cervical and
thoracic condition other than fibromyalgia, to include
arthritis.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Schechter, Counsel
INTRODUCTION
The veteran served on active military duty from November 1972
to July 1986.
The appeal comes before the Board of Veterans' Appeals
(Board) from the October 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina, granting service connection for
fibromyalgia and assigning a 10 percent rating for that
disorder.
In October 1999, the veteran initially claimed entitlement to
service connection for a cervical and thoracic spine
condition, but the RO in the October 2000 decision
recharacterized the claim as one for fibromyalgia. In his
November 2000 notice of disagreement with the October 2000
decision, the veteran contested this recharacterization,
contending that the condition for which he was claiming
service connection was "more reflective of degenerative
arthritis." The responsive statement of the case then
issued by the RO neglected to address this arthritis claim,
as discussed in the body of the remand, below.
The Board remanded the appealed claims in January 2003, and
the case now returns to the Board for further review.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA) prescribes
VA duties to notify the claimant of the evidence needed to
substantiate a claim, notice of the evidence VA will obtain,
and notice to the claimant what evidence he is responsible
for submitting. It also prescribes VA duties to help a
claimant obtain relevant evidence. The VCAA is codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002). VA duties pursuant thereto have been codified
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2003).
In this instance, notice of the VCAA was provided in a March
2002 letter, and additional development notice was provided
in other letters to the veteran. However, the veteran was
not fully afforded specific notice of what VA would do and
what the veteran needed to do to substantiate his claims.
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specific
notice was also not afforded in a development letter sent to
the veteran in February 2003, or in an August 2003
supplemental statement of the case. Hence, sufficient notice
must be accomplished upon remand, to include specific notice
of the evidence that has been obtained by VA and specific
notice of the evidence the veteran must himself submit in
furtherance of his claims.
Based on rating criteria for fibromyalgia under 38 C.F.R.
§ 4.71a, Diagnostic Code 5205 (2003), including consideration
of depression as a symptom of that disorder, the Board in
January 2003 remanded for a joint medical opinion from both
the VA physician who examined him for fibromyalgia in May
2000 (Dr. Kolender), and the VA psychiatrist who diagnosed
major depression with psychosis, agitated type, in June 2000
(Dr. Ingram). In a May 2003 response Dr. Ingram stated that
Dr. Kolender was unavailable. Dr. Ingram then endeavored in
his May 2003 response to provide some opinion addressing the
veteran's fibromyalgia. Unfortunately, the opinion provided
is not a model of clarity, and on the surface, it appears
self-contradictory. In this respect, Dr. Ingram stated that:
? It was not in the scope of his evaluation to
assess the veteran's level of disability;
however,
? the veteran's fibromyalgia was of increased
severity, being now moderately disabling.
The disorder was judged to result from the
"veteran's sequelae of his head injury"
(emphasis added);
? while depressive symptoms may be associated
with fibromyalgia, fibromyalgia generally
was essentially an amorphous condition
without clear symptoms or boundaries, and in
any case the diagnosed psychosis in this
case, an element of this veteran's
depression, was not a psychiatric condition
associated with fibromyalgia; and
? the veteran did not have fibromyalgia
(emphasis added).
Dr. Ingram commented that the veteran's condition was a
"Gordian knot," and suggested that a rheumatology
evaluation may be helpful. Thus, the Board will now seek the
assistance of a qualified rheumatologist to cut through this
knot and appropriately assess the condition.
Accordingly, the Board finds that the following additional
development is warranted:
1. The RO should further review the
issue of entitlement to service
connection for a cervical and thoracic
condition other than fibromyalgia, to
include arthritis, and take any
appropriate action necessary under the
VCAA, to include full compliance with
the notice provisions as defined in
Quartuccio v. Principi, 16 Vet. App. 183
(2002). If the benefit remains denied,
unless the appeal is withdrawn in
writing by the veteran, the RO must
issue a statement of the case responding
to the November 2000 notice of
disagreement. The appellant and his
representative are advised that they
will have sixty days from the date of
mailing of the statement of the case to
submit a substantive appeal as to this
issue. If a timely substantive appeal
is not received, no further action is
required by the RO as to this issue.
2. The RO should review the claims
file and ensure that all additional
evidentiary development action
required by the VCAA, and
implementing regulations is
completed. The RO should
specifically:
A. Notify the veteran of the
specific evidence necessary to
substantiate his claim of a higher
evaluation for fibromyalgia from
October 21, 1999. The RO should
emphasize to the veteran that he is
ultimately responsible to provide the
necessary evidence. VA, however,
will make efforts to obtain relevant
evidence, such as VA and non-VA
medical records, or records from
government agencies, if he identifies
the custodians thereof. VA must
notify him of evidence he identified
that could not be obtained so that he
may obtain the evidence himself and
submit it. Quartuccio.
The RO should inform the veteran of
the diagnostic criteria that must be
met, as shown by medical evidence, to
support his claim for a higher
evaluation. He should also be
informed that, if supported by
medical evidence, he may receive a
higher evaluation for his
fibromyalgia for any period beginning
from the October 21, 1999 date of
receipt of his increased rating
claim.
B. The RO should inform the veteran
that he has one year to submit
evidence needed to substantiate his
claim, or to identify for VA the
custodians of such evidence so that
VA may attempt to obtain it. The RO
must inform him that his appeal will
remain in abeyance for one year or
until he indicates in writing that
there is no additional evidence he
wishes to have considered, and that
he wishes to waive any remaining time
provided by 38 U.S.C.A. § 5103(a).
Paralyzed Veterans of America v.
Secretary of Veterans Affairs, 345
F.3d 1334 (Fed. Cir. 2003) (PVA).
3. The veteran should be instructed
to identify any medical records, VA
or private, which may be pertinent to
his remanded claims, but have yet to
be associated with the claims
folders. He should also provide
contact information and necessary
authorizations and releases to permit
VA to obtain any identified treatment
records. The RO should attempt to
obtain any indicated records, and
should associate with the claims
folder all records and responses
received.
4. After completion of Instructions
2 and 3, schedule the veteran for a
rheumatology examination to assess
the nature, scope and severity of any
fibromyalgia. The claims folder must
be available to the examiner for
review. The examiner must address
whether the veteran has fibromyalgia,
and if so, the nature and severity of
all associated symptoms, including
any depression attributable to the
fibromyalgia rather than attributable
to other diagnosed conditions.
5. Thereafter, and following any
other appropriate development, the RO
should readjudicate the fibromyalgia
claim. If any determination remains
to any extent adverse to the veteran,
he and his representative must be
provided a supplemental statement of
the case which includes a summary of
additional evidence submitted, any
additional applicable laws and
regulations, and the reasons for the
decisions. They should then be
afforded the applicable time to
respond. Particular care and
attention must be afforded to
ensuring that the veteran has been
provided complete notice of what VA
will do and what the claimant must
do. Quartuccio.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
_________________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).